Sunday, April 20, 2014

When the Supreme Court struck down so-called “aggregate” campaign contribution limits earlier this month [April 2], Chief Justice John G. Roberts Jr. cast the decision as in line with a long series of free-speech rulings. “If the First Amendment protects flag burning, funeral protests, and Nazi parades  despite the profound offense such spectacles cause  it surely protects political campaign speech despite popular opposition,” Roberts wrote. Justice Antonin Scalia was not on the court at the time of the Nazi parade decision (National Socialist Party v. Village of Skokie, 1977), but he joined in the two other earlier decisions: Texas v. Johnson, 1989; and Snyder v. Phelps, 2011. Indeed, Scalia often boasts of his vote in the flag-burning case to prove his fidelity to originalist constitutional principles. Scalia’s devotion to freedom of speech, however, has its limits. He draws the line at a landmark decision being celebrated this year on the occasion of its fiftieth anniversary: New York Times v. Sullivan. The court’s 1964 decision established the now famous rule that a public official cannot recover damages for libel unless he or she proves that the alleged defamation was made with knowledge that it was false or with reckless disregard as to its truth or falsity. Appearing in a joint interview with Justice Ruth Bader Ginsburg on The Kalb Report [April 17], Scalia volunteered his disagreement with the decision. “It’s wrong,” Scalia said. “You cannot sue anybody for libel unless you can prove he knew it was a lie,” Scalia declaimed. The Framers “would have been appalled” by the ruling. The court “was revising the Constitution,” he continued, not interpreting it. Ginsburg quietly demurred. If the Founding Fathers had been around in the 1960s, they would have approved of the decision, she said. Today, she added, the ruling is “well accepted.” Indeed, the precedent is quite secure: no justice has called in a published opinion for reconsidering the ruling since Chief Justice Warren E. Burger and Justice Byron R. White did in separate opinions in a 1985 decision, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. But Scalia’s was not the only dissenting voice heard during the 50th anniversary celebration. Writing for Bloomberg View last month [March 27], Harvard law professor Cass Sunstein echoed the complaint heard often from public officials that the ruling has left them with no protection against slanderous lies, especially from the news media. Far from promoting democracy, Sunstein opined, the ruling has actually disserved self-government. “Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant—exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion,” he wrote. The decision, he continued, “can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” With those complaints in mind, it is well to recall the case itself. The Times was called to answer in an Alabama courtroom, along with four leaders of Martin Luther King’s Southern Christian Leadership Conference, for an advertisement the civil rights group had placed in the newspaper in 1960. Montgomery police commissioner L.B. Sullivan was not named in the ad, but sued for libel on the theory that the criticism of “police” with minor factual discrepancies defamed him personally. Sullivan won six-figure judgments against the Times and the civil rights leaders  serious financial penalties for the newspaper, not to mention the civil rights leaders. The Alabama Supreme Court affirmed the judgments, blinking at Sullivan’s implausible theory of the case. Unanimously, the Supreme Court reversed the decision and went further to order Sullivan’s suit dismissed altogether. Justice William J. Brennan Jr. rightly noted that Sullivan’s theory would have allowed libel suits for any criticism of government. And he surely captured the Founding Fathers’ spirit when he said the First Amendment reflects “a national commitment to the principle that debate on public issues should be robust, uninhibited, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Despite the rhetorical flourish, Brennan actually crafted a compromise of sorts: the so-called “actual malice” test allows a public official to win a libel case by meeting the demanding burden of proof. Three justices  Hugo Black, William O. Douglas, and Arthur J. Goldberg  would have gone further and blocked libel suits by public officials for anything relating to their official duties. The court fractured three years later in imposing the same burden of proof on public figures in libel cases. Over the years, the court has limited the impact of that decision by narrowing somewhat the definition of public figures. Still, it is undeniably true that libel cases are daunting for public official and public figure plaintiffs these days. Importantly, this free-speech protection for libel defendants extends not just to the institutional press, but to anyone  including the bloggers and social media users that Sunstein referenced. As Roberts acknowledged in the campaign contributions case, freedom of speech does come at a cost. But public officials and public figures know how to defend themselves in public debate without the chilling effect of hauling their critics into court. Fifty years out, Times v. Sullivan rightly deserves its place in the pantheon of First Amendment landmarks.

Sunday, April 13, 2014

After the arguments in the Utah gay marriage case had ended, the state’s recently appointed attorney general Sean Reyes approached the six plaintiffs in the case to offer sympathy for what they have gone through. “It’s not personal,” Reyes told the three couples, according to the account by Los Angeles Times reporter Jenny Deam. Reyes, a Republican and the first Latino to hold statewide office in Utah, elaborated when reporters caught up with him. “I wish them the best,” said Reyes, son of an immigrant Filipino father. “Their families are as important to them as mine is to me." Reyes continued to strike a conciliatory tone the next day at a rally of gay marriage opponents, urging the crowd to be “respectful” and “empathetic” toward those on the other side. For her part, the lawyer for the plaintiffs also took a conciliatory stance during the hour-long arguments in the case before three judges from the Tenth U.S. Circuit Court of Appeals [April 10]. When Salt Lake City attorney Peggy Tomsic said the state’s voter-enacted ban on same-sex marriage reflected “animus,” Judge Paul Kelly asked whether she was accusing the people of Utah of being “mean-spirited or bigoted.” Tomsic quickly demurred. Animus, she explained, was merely “a constitutional term of art” used to describe exclusionary laws that had no rational basis. Reporters who covered the arguments were naturally tentative in their stories about the likely outcome of the case, but anyone who listens to the audio posted on the court’s web site can hear the outlines of a decision to strike down the Utah measure. Alone among the three judges, Kelly, a Republican appointed to the bench in 1991 by President George H.W. Bush, appeared to defend what the state’s lawyer defined as Utah’s “traditional child-centric vision” of marriage. The other two judges had sharp questions for the state’s lawyer: Gene Schaerr, a high-profile appellate lawyer who resigned from a Washington, D.C., firm to return to his native state to defend the gay marriage ban. Schaerr opened by arguing that the Supreme Court had upheld states’ authority over marriage in its decision in June, United States v. Windsor, to strike down the federal Defense of Marriage Act (DOMA), Judge Carlos Lucero, a Democrat appointed by President Bill Clinton in 1995, pointedly disagreed. The “dispositive language” in Justice Anthony M. Kennedy’s opinion in the case was not about federalism, Lucero said, but about equal protection. Judge Jerome Holmes, a conservative African American appointed by President George W. Bush in 2006, asked pointed questions of both lawyers. But he seemed to presage a vote for the plaintiffs by citing the Supreme Court’s decision in 1967 to strike down laws banning interracial marriage. That law “made that mixed-race couple essentially an ‘other’ for the purposes of marriage,” Holmes told Schaerr. “Why is that any different from this situation?” Even before the arguments, gay marriage supporters were optimistic about winning Holmes’s vote. He was one of the two Tenth Circuit judges who back in December declined to block gay marriages in Utah while the lower court ruling invalidating the ban was on appeal. Schaerr’s decision to pitch the state’s defense on the interests of children led the judges into questions about the social science research on how kids fare in same-sex households. In reply, Schaerr made a telling concession that children of same-sex couples “would likely be better off if their guardians or parents were allowed to be married.” When he continued by saying the same would be true for children of polygamous marriages, Lucero abruptly cut him off. “Let’s talk about gay marriage,” Lucero said. The arguments in the Utah case  and arguments before the same panel in a case from Oklahoma later this week [April 17]  mark the first times marriage equality has reached a federal appeals court since the Supreme Court’s decision in Windsor. Since the Supreme Court ruling, gay marriage advocates have won an unbroken string of victories in 11 states from state and federal courts. Judges from diverse backgrounds and representing different generations have uniformly interpreted Windsor to undermine the state laws still on the book excluding same-sex couples from marrying. Besides Utah and Oklahoma, state bans have also been struck down by federal judges in Virginia, Texas, and Michigan. The judge in the Virginia case, Arenda Wright Allen, is an African American appointed by President Obama in 2011; the judge in the Michigan case, Bernard Friedman, was appointed by President Ronald Reagan in 1988. In his ruling, Friedman significantly rejected the social science research cited by opponents of same-sex marriage as “unreliable.” After Friedman’s ruling, the Detroit Free Press columnist Brian Dickerson recalled that the judge had hired a lesbian law clerk back in 1995 and had taken a grandfatherly interest in her family through her two pregnancies. As the anecdote shows, the court cases now headed toward the Supreme Court may ultimately turn on questions of law, but  despite what Reyes told the Utah plaintiffs  the cases are also unmistakably personal for the couples involved. Gay marriage advocates have turned public opinion around by showing Americans the true picture of gay and lesbian families. With those stories before them, judges have been turned around as well, recognizing a right unrecognized as recently as 10 years ago. The only question remaining is what the Supreme Court will do when the first cases arrive there, probably later this year.

Sunday, April 6, 2014

Through more than 200 years, the Supreme Court invariably included a mix of justices who rose through legal and judicial careers and one or more justices with experience in elective politics. But when former Arizona legislator Sandra Day O’Connor retired in 2005, the court was left for the first time with no one who had ever sought elective office after their days in high school or college. It is no mere coincidence that O’Connor’s departure marks the court’s turning point on issues of campaign finance regulation. O’Connor co-authored along with Justice John Paul Stevens what may prove to be the court’s last decision supporting efforts by Congress and state legislators to limit the corrupting influence of uncontrolled money in politics. Her successor, Samuel A. Alito Jr., quickly joined the court’s four other Reagan-era conservatives in what is now the Roberts Court’s string of six decisions striking down federal or state laws aimed at limiting the corrupting influence of unlimited money in political campaigns. The Roberts Court claimed its latest victim in a decision last week striking down so-called “aggregate” contribution limits to federal candidates or national parties and political committees. The 5-4 decision in McCutcheon v. Federal Election Commission [April 2] gives any well-heeled campaign donor the right to spread millions of dollars around to congressional candidates and national, state, and local parties in any given election cycle. The ruling leaves in place the existing “base” limit on contributions to a single federal candidate: $5,200 per election cycle for a candidate who runs in a party primary and general election and $32,400 to a national party committee. But it wipes out the provision dating from the post-Watergate campaign finance law that established an overall limit on the donor’s contributions.
For the current election cycle, the limit was $48,600 to candidates and $74,600 to political parties or committees  $123,200 in all. Under the new ruling, a donor theoretically could spread nearly $2.5 million around to 435 House candidates and 33 Senate candidates and perhaps another $1 million or so to party committees and political action committees (PACs). The decision, written by Chief Justice John G. Roberts Jr., has an appealing logic, but only if one accepts an initial premise that distorts four decades of campaign finance precedents. In Roberts’ reading, those precedents allow campaign contributions to be limited only as necessary to prevent quid pro quo corruption  which he helpfully defined in court as “this for that”  or the appearance of such blatant bribery-like vote buying. Roberts acknowledged, at least for now, that federal law could limit the amount a donor could give to an individual candidate for Congress to prevent the corruption of that candidate. But if a donor could give that amount to nine candidates, Roberts asked, where is the harm in giving the same amount to a tenth? Or, under that logic, to a 435th? Way back in 1976, the Supreme Court in Buckley v. Valeo (1976) upheld the principle of aggregate contribution limits as a way to prevent circumvention of the base limits. In a passage joined by six of the eight justices to hear the case, the court said the overall ceiling on contributions was needed “to prevent evasion” of the base limit. A donor could contribute additional sums to party committees, the court reasoned then, knowing that they would funnel the money to the specific candidate. Roberts dismisses the passage as a single paragraph on an issue not fully briefed and then goes on to pooh-pooh the possibility of circumventing the base contribution limits so readily. The intricate arrangements needed, Roberts says, are speculative and unlikely. In addition, Roberts stresses that the Federal Election Commission (FEC) now has regulations that make it illegal for a donor to “earmark” a contribution to a party committee to benefit a specific candidate. Roberts blithely disregards the FEC’s permanent status of partisan gridlock  the inevitable product of the legal requirement for an equal number of Republican and Democratic appointees. Roberts cited one case in which the agency had found impermissible earmarking. In his dissent, Justice Stephen G. Breyer pointed more persuasively to eight cases in which the FEC had failed to enforce earmarking restrictions. More broadly, Roberts simply ignores the political reality of campaign finance: influence-buying money, like water, will find its own level. As Breyer noted, the court in Buckley upheld contribution limits on the ground that they would help prevent “improper influence” on candidates, not merely quid pro quo corruption. And influence is what campaign donors seek to buy  and now will be able to buy in larger and larger amounts. The new ruling marks the second time that Roberts, an adherent to judicial restraint in his confirmation hearing in September 2005, has presided over the overruling of a campaign finance precedent to strike down a law passed and reaffirmed by Congress. Four years ago, in Citizens United v. Federal Election Commission (2010), the court’s precedent-breaking decision freed corporations or labor unions to spend unlimited amounts on their own in political campaigns. In his dissent at the time, Stevens wryly observed that few Americans other than the court’s majority would have worried about “a dearth of corporate money in politics.” It is all the more true that few Americans want more money from well-heeled donors to flow to congressional campaigns. But that is what the Roberts Court, by a single vote, has now allowed  and most assuredly will occur.

About Me

Kenneth Jost is author of The Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and a contributing writer to CQ Researcher. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award and is an occasional analyst on national and local radio and television news programs.

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